Case Information
*1 AUSTIN la. TEXAS PRICE DANIEL
ATmrnFJzY ca~Nmz”A~ April 13, 1948
Ron. C. E. Balk, Administrator
Board of Plumbing Braminers
306 West 15th ,Street opinion Ho. v-541 Austin, Texas Re: Applicability of the Plumbing L.l.cense,Lav of 1947 to butane or propane dealers vho Install piping used exclusively for llque- fled petroleum gas purposes.
~Dear Sir:,
Referenoe is made to Tour request for an opin- ion on the above captioned subject, and ve quote from hour letter, in part, as follovs:
"1. Ave butane or prop6ne dealers who install piping vhich is used exclu- sively for butane and propane purposes, regardless of vhether~the house so plped Is Inside or outside of cities OS five thousand more population, ubjeat to the provisions of S.' B. 1881 I The Plumb-~ ing License Lav of 1947)
'2. Are .butane and propane dealers who Install appliances for use on butane and pro e subject to the provisions of 9. B. 1 r 8 vhen such Installation requires that said dealers or theLr employees find It necessary to run additional gas and water lines in order to make such appli- ancea function properly?
"3. If your titerpretatlon excludes butane and propane dealers In Texas from the provisions of this Act, would such ex- cluded dealers be subject to any local or- dinances which cities In Texas may pass In *2 Eon. C. 6. Belk, page 2 (V-541)
an attempt to bring such butane and propane dealers under the provlelone of their local plumbing ordinances, or vould the provl- alone of 8. B. 188 prevail over such local ordlnancea?~
As you have noted In your request, the Rail- road Co~selon Is given a general regulation and ll- aenelng authority over liquefied petroleum gas dealers Snd operators who install liquefied petroleum gas etor- age and dispensing systems and plplng. The authority o? 'the Railroad Commlsslon to license such activities 1s~ cixitalned In Acts 1945 49th Le 9. B. 269, ch. 358, i6$1 Statutes as Arti- pige 629, codlrled in #ernon(s 8
ale 6053 from which we quote the pertinent excerpts:
'Sea, 7. (1) No person, firm or cor- poration shall enga e In this state ln the manufaoturlng, and aesembll B 7, -d/or repairing, and/or selling, and or install- ing of containers to be used with llquefl- ed petroleum gases aa a fuel, nor shall such person, firm, corporation engage In the sale, traneportatlon,~dlspensing or storage o? liquefied petroleum gases within this state, except where stored by the ulti- mate consumer for consumption only, without having fipet obtained from the Railroad Com- mission of Texas under the provisions of this Act [4] license so to do. Applications for such licensee shall be In writing and shall contain such~lnformatlon as the Con- mlseion shall preecrlbe. No such license shall be Issued until a hearing is had thereon and~the Commission has determined that the applicant has made good and euf- ficient proof that he can and will meet all safety requirements provided in this Act and by the rules and regulations of the Railroad Commission, and the Con&salon finds that such applicant Is qualified and the evidence adduced justifies Issuance of such license. The Railroad Commission shall have the authority to promulgate rules and regulations fo$ the safety and protection of the public.
"sec. 8, Provided further, that the Coamlssion shall have the authority to *3 Eon. C. E. Belk, page 3 (V-541)
require every person, firm or corpopa-
tion who makes lnetallatlone or repairs
of containers, equipment, 4nd/or appll- ancee, or rirme, persona or aorporatlons using inetallatlon men, se-ice men, and repair men, to have at least one person in their regular employ or organlaatlon vho shall prove through an examination given by the Railroad Comslsslon that he has a thorough knowledge and underetand- lng of the containers, appliances a4d equipment they Intend to install; and pro- viding further that he is aompetent sad qualified to properly Install, sertiae and/or repair such contalnere, sppllancee and equipment; such examlnatlan to be bss- ed upon recognized standard aodes and practices as promulgated by the Railroad Comuleslon. Persons, firms, aorporatlone or aseoclatlons who handle appliances ex- clusively for use with natural gae;and who do not offer their appliances for sale or use with liquefied petroleum
gases, are exempted from the $rovislons of this Act,"
Additional provisions of Art. 6053 require a surety bond In favor of the State of Texas, and poli- cies of insurance to protect those who may be injured by any act of negll ence on the part of liquefied petro- leum gas dealers. t also contains sections providing '4
for procedures for hearings In connectlon'wlth com- plaints against licenses. Provlsior~ for payment of a fee for the license reqnired by Section 7 of-the Aat 1s also mnde.
The Plumbing Ucense tiw of 1947, to which you refer, Is codified as Article 6243-101, V. C. 9. It PB- qulree a license of plumbers and in Section 2 defines plumbing as follows:
"Sec. 2 (a) The word or term lplruablngl as used in this Act mans
and shall lnalude'. (1) All piping, fix- tures, appurtenances and appliances for a supply of water or gas, or both, for Sll personal domestic purposes in and abmtbuildinge where a person or persons live, vork assemble; all piping, flx- *4 Hon. 0. E. Belk, page 4 (v-541)
turea, appuvtenanaes sad appliances out- side a bulldlng aonueatfng the building vlth the source of vater or gas supply, or both, on the premleee, or the main in the street, alley or at the curb; all plp- lng, fixtures, appurtenances, appliances, drain or waste pipes carrying waste water or sewage from or within a bnildlng to the sever servlae lateral at the curb or In the street or alley or other disposal ter minal holding private or domestic sewage; (2) the installation, repair and malnte- nance of all piping, fixtures, appurte- nances and appliances In and about bulld- ings vhere a person or persons live, vork assemble, for a supply of gas, water, or both, or disposal of waste water or sewage e
We vi11 first consider the question of vheth- er those engaged solely in the liquefied petroleum gas business vlthln the terms of Article 6053 are also sub- ject to the requirements of the Plumbing License hw of 1947.
By Article 6053, the Legislature bas set up elaborate regulatory provisions applicable to the llque- fled petroleum industry Including thetldelegation of authority to the Railroad Commission to promulgate rules and r$gulatlone for the safety and protection of the public. It further authorized the Commission to require all vho make, employ others to make, lnstall- atlone or repairs of containers, equipment and/or appll- antes, to have at least one person in their employ or organization who shall prove through examination that he baa all of the knowledge, competency and qualifications necessary to do the work, the examination to be based upon recognized standard codes and practices as promul- gated by the Commlsslon.
Such requirements, and those the Commlsslon Is authorized to make thereunder, are designed to accom- plish the identical ends insofar as the lnstallatlon, etc. of liquefied petroleum gas facilities as the 'Plumb- ers License Lav Is designed to accomplish as to plUma- lng installation enerally, including gas fixture in- stallation. The lquefled Petroleum Gases Law goes fur- f5
ther than to provide measures to assure comrmtenc& and authorizes the regulation of manufacture and installa- *5 Eon. C. E. Belk, page 5 (V-541)
tlon of all equipment designed for the utlllzstion of liquefied petroleum gases.
Are ve, therefore, to construe the Plumber’s License Law as a modification of the Liquefied Petro- leum Gases Iaw In requlrlng an additional or duplicate exaaination into the competency of those engaged solely In the business contemplated by Article 6053, and lncl- dentally require them to qualify to engage ln plumbing actlvltlee having no relation whatever to the lnetalla- tlon, repalr and servicing of liquefied petlioleuia gas facllltles? Such an Interpretation can arise based solely on a strictly literal interpretation of its lan- B uag e l
It Is true that one holding a general license having as Its purpose the accomplishment of leglelatlve ends dlffepent from those of a more specific license to do things Included In the general license may be requir- ed to obtain the specific license. It my also be true that one holding such a specific license my be requlr- ed to obtain the general license. But vhen the specific license requirement Is designed to accomplish all of the ends of the general license requirement a.nd mope too, then ve believe that the latent of the Legislature is fulfilled by meeting the requirements of the specific license by one engaged goleu In the endeavor or oaou- patlon contemplated by the latter.
This principle has been recognized In the con- struction of tax and license statutes and opdlnances In sitnations believed to be anarlogoue to the present con- siderations. In the case of Terse Company v. Stephens, 103 5.W. 481, by the Supreme Conzlt of Texas, the court said:
“The 8ame person corporation may carry on several different businesses, and, of course, may be taxed in respect of each, but, vhen the Legislature has defined and taxed one business, It Is not to be aseum- ed that it has Intended to again tax the same business uuder another name, nor Is It to be assumed that It has~fntended to tax, as a distinct business, that vhlch la a mere Incident of another business vhlch has been defined and taxed as a whole.*
Ye are of the opinion that those vho do no *6 Hon. C. B. Belk, page 6 (V-541)
plu+ng work- other-th+n t+t a~d lnaldentslly to the business regulated by Article 6053 are not subject to the Plumbers Ucenee Law.
The Plumbing License Law contains provisions . whiah we believe support the construction which we 'have placed thereon in the light of the &pefled Petroleum Oases Law and other enactments.
Section 15 of such lav provides: "Every city in this State of more than five thousand (5,000) lnhabltanta shall, and any city or town of this State nuxy, by ordinance by law, prescribe rules and regulations for the aterlals, construction, alteration and Inspection of all pipes, fauce.t&, tanks, valves, and other fixtures by and through which a sup- ply of eater, gas sevage is used or carried; and provided that they shall not be placed In any bulldlng therein exaept in accgrdanoe with such rules and regula- tions.
The above Section la in direct conflict with Sections 3 to 6 of Article 6053 authorizing the Railroad Com@sslon to presaribe rules and'r&@atlons covering the same eubject~ matter Insofar as the utilization of liquefied petroleum gases 1s concerned. An attempt to blend these enactments Into a system of concurrent 4nd simultaneous jurisdiction over the llquefled~petroleum Industry la obviously Impractical. Ro such result could, In reason, havebeen contemplated by the Legislature.
Repeals by lmpllcation~are not favored. Here a specific lav deals vlth licensing liquefied petroleum gas handlers and a later general law is silent on this particular type of workman. Both laws must be harmonie- ed and upheld If possible. The later law will not be held to lmplledly repeal the former. Uquefled petro- leum gases being highly explosive, require special han- dling and ihe Legislature has made special provision for Its handling thPough.the Railroad Commission, and not by regulation through the State Board of Plumbing Examin- ers.
Your first two question are, therefore, answer- ed In the negative.
BOIL C. E. Belk, page 7 (v-541)
As to your third question, hating concluded that liquefied petroleum gas enterprlsed are not eub- ject to the Plumbing License Law, we,belleve that the extent to vhich munlclpalltles might regulate them Is not affected by anfof the provisions thereof. We aan- not state aategorlcally that local city plumbing ordi- nanaee would not apply to them in any particular. How- ever, since the Legislature has seen fit to laae them under the regulation and supervision of t&e Ii allroad Commission, to that extent Railroad Commlsslon regula- tion would be flxcluslve.
The general+e Is stated in 43 C. J. 422, Munlclpal Corporatlone , Section 553:
“The power to regulate public utll- ltlee~may be and oftehtlmes la, delegated by the State to boards or cosnnlsslons.
Then the question arises whether the pover of euah body is exclusive or concurrent with that of the municipal corporation.
If the ptier conferred on the board or
commission may be exercised without being interfered with by the regulation of the munlclpal corporation, the power may be exercised concurrently to the extent that the mtmlalpal regulation does not conflict vlth the exerolse of the power aonferred upon the state board or~aoam&sslon. Fol- lowing the general rule, municipal regula- tions dealing with public utllltles can- not conflict vlth statutory enactments on the subject. Ordinarily power conferred on public service boards or comnlsslons over publla utllltles exaludes the cq- poratlon from acting In the premises.
This rule would also apply where activities, other than those of “public utilities”, are under statu- tory authority, regulated by a State board or commls- slon.
SUMMARY Liquefied petroleum gas enterprises regulated under Article 6053, V. C. S., are not subject to the provisiona of Arti- cle 6243-101, V. C, S., the Plumbing Li- tense Lav of 1947. Municlpalltles may not regulate such liquefied petroleum gas con- *8 Ron. C. IL Belk, page 8 (V-541)
1 ale, 6053,'V. 0. a., az@ the regulation8 aerna manner lnaonalatent xith [4] in Arti- ,I thereof by the Railroad Coml&an.
TotAre VtRy tFUly, c&c&)+& ,. ha bDanie1 ' Assistant